TN: “Nexus” applies to PC and automobile exception

The nexus requirement of probable cause and the place to be searched applies to automobile exception searches. Here, the question is close, but the court concludes there was a showing of nexus between the vehicle and the offense. State v. Thornton, 2017 Tenn. Crim. App. LEXIS 10 (Jan. 10, 2017) (dissent here):

The State appears to concede that the trial court’s reliance on the vehicle being an instrumentality of the offense would not justify a seizure of the vehicle. We note that a vehicle which is the evidence or instrumentality of a crime is subject to seizure. 3 Wayne R. LaFave, Search and Seizure § 7.3(a) (5th ed.) (“[I]f there is probable cause [to believe that] the vehicle is evidence of crime …, then it is certainly arguable that it should be just as subject to warrantless seizure and search as a vehicle merely thought to contain evidence.”); see, e.g., Capraro v. Bunt, 44 F.3d 690, 691 (8th Cir. 1995) (vehicle used to accomplish a kidnapping was an instrumentality of the crime). Accordingly, when there is probable cause to believe that the vehicle itself has evidentiary value, it may properly be seized. State v. Arthur B. Harbin, Jr., C.C.A. No. 60, 1990 Tenn. Crim. App. LEXIS 609, 1990 WL 126729, at *1 (Tenn. Crim. App. Sept. 5, 1990) (upholding seizure of vehicle and examination of brakes when the vehicle had struck and killed a child); see also State v. Donald Curtis Reid, No. M1999-00058-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 342, 2000 WL 502678, at *7 (Tenn. Crim. App. Apr. 28, 2000) (upholding seizure of the vehicle used to flee a robbery as an instrumentality of the crime because a witness had taken a photograph of the “rather unique” vehicle and the vehicle itself therefore had potential evidentiary value regarding the identity of the perpetrators, and also upholding search as incident to arrest); United States v. Sanchez, 612 F.3d 1, 5-6 (1st Cir. 2010) (upholding seizure of motorcycles with false license plates as evidence of the licensing infractions). Here, there was no indication that the vehicle itself had evidentiary value in relation to the solicitation crime or was used to commit the crime, and accordingly, its seizure cannot be justified under the theory that it was an instrumentality of the offense.

The State argues that there was probable cause to believe that the vehicle contained evidence. The Defendant was arrested for solicitation of a minor and resisting arrest. The Defendant had exchanged text messages with the minor, and he wrote the minor, “Ok I dont mind givin you a condom but I just dont trust alot of people when it comes to condoms and sexual items.” The Defendant arranged a late-night meeting with the minor, and he changed the meeting spot based on his observation of police activity in the area. He also insisted on speaking with the minor through the telephone to confirm that he would be meeting a child. He left his vehicle at his sister’s home, where it was unlikely to be discovered, and the trial court found that he was later “evasive” about its location. The Defendant was charged with solicitation of a minor for the criminal acts he committed that evening. The telephone that the Defendant used to communicate with the minor and a condom were recovered from the Defendant’s person; accordingly, law enforcement could not have expected to find them within the vehicle. Nevertheless, the State argues that there was a “fair probability” that the vehicle contained additional evidence of the crime, referencing the text message regarding “sexual items.”